Judge Ralph C. Hofer, Case Number: 23GDCV01875, Date: 2024-04-26 Tentative Ruling

This is an action to collect sums allegedly due under two credit card account cardmember agreements entered between plaintiff Citibank, N.A. and defendant Arsen K. Sogomonyan.

On November 20, 2023, plaintiff filed an application for an order directing service of summons on defendant by publication in the Los Angeles Daily Journal. On November 21, 2023, the court signed and filed an Order for Publication. On December 18, 2023, plaintiff filed a Proof of Publication.

On January 22, 2024, plaintiff filed a Request for Entry of Default, based on service by publication, which default was entered as requested the same date.

On February 15, 2024, the court signed and filed a Judgment by the Court by Default, based on plaintiff’s written declaration, entering judgment for plaintiff Citibank, N.A. and against defendant Arsen K. Sogomonyan in the total sum of $53,668.70.

(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

Where relief is sought under this section, the showing must be made by competent evidence. Anastos v. Lee (2004) 118 Cal.App. 4th 1314, 1318.

“This section is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication), but defendant nevertheless did not find out about the action in time to defend. Typically, these are cases in which service was made by publication.”

California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2024 rev.), italics in the original, citing Randall v. Randall (1928) 203 Cal. 462, 464-465.

Where service is by publication, there is no requirement that a defendant show “surprise, mistake or excusable neglect” to be entitled to relief. Instead, where service was by publication, there is a prima facie case established, as the law presumes from the fact of constructive service only that failure to answer is due to lack of notice of the service. Palmer v. Lantz (1932) 215 Cal. 320, 324.

A defendant is entitled to relief if defendant has not received actual notice; imputed or constructive notice is not “actual” notice. Rosenthal v. Garner (1983, 2nd Dist.) 142 Cal.App.3d 891, 895. “Actual” notice is defined under Civil Code section 18 as that “which consists in express information of a fact.”

This law means that to defeat a motion for relief if supported by the proper showing in a service by publication case, plaintiff must come forward with facts showing actual notice, neglect, or avoidance of service.

Whether relief should be granted on this ground “is a matter within the discretion of the trial court and its order will not be disturbed except for an abuse of discretion.” Brockman v. Wagenback (1957, 2nd Dist.) 152 Cal.Ap.2d 603, 611 (applying predecessor statute). It is also recognized that the trial court in exercising its “broad discretion” in application of the statute, should resolve any doubt as to setting aside of a default in favor of the application:

“‘It is also well established that it is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolve in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.’”

Here, the motion indicates that defendant first learned of the default in the lawsuit on March 1, 2024, when defendant received a document entitled Notice of Entry of Judgment in Favor of Plaintiff Citibank. [Sogomonyan Decl., para. 5]. This motion was filed on March 15, 2024, within a reasonable time after defendant received notice, and well within the statutory period of 180 days after service of such notice. The motion is accompanied by a proposed answer. [Ex 1]. The service upon which default and default judgment was entered was service by publication.

The motion is supported by a declaration from defendant Sogomonyan stating that he did not receive actual notice of this action until March 1, 2024, when he received the above referenced notice at his correct address and explains that defendant had moved to a new address in August of 2023, before this action was filed on September 5, 2023. [Sogomonyan Decl., para. 7]. The declaration states that defendant was unaware of the lawsuit before March 1, 2024, and was not evading service. [Sogomonyan Decl., paras. 5, 6].

The court notes that the copy of the declaration filed with the court, which is stated to be made under penalty of perjury under the laws of the State of California, does not include a signature, date or a place of execution. The opposition does not object on this ground, so it is possible the service copy was in fact executed. In any case, plaintiff will be required at the hearing to sign, date, and state the place of execution of the declaration.

The declaration sufficiently establishes that defendant had no actual notice in time to defend, and that such lack of notice was not due to avoidance of service or neglect. This shifts the burden to plaintiff.

Plaintiff Citibank has filed a “limited” opposition to the motion, indicating plaintiff is suspicious of the fact that Sogomonyan claims to have received no notice of the lawsuit but that he somehow received notice after judgment was entered, but is mindful of the fact that service was completed in this case by publication, so that it is conceivable that defendant did not have notice and an opportunity to timely file a response to the complaint. Plaintiff has submitted no evidence or showing of facts suggesting that plaintiff had actual notice, or was avoiding service, or which would otherwise defeat plaintiff’s entitlement to relief under the statute. The motion will be granted.

Plaintiff indicates that plaintiff does not object to the relief requested on the condition that the Answer attached to the motion be deemed filed with the court, that this matter is placed back on the court’s active calendar, and that the case be procedurally consolidated with a related small claims action.

The court orders that plaintiff efile a separate executed copy of the proposed answer attached to the motion as Exhibit 1. The matter is returned to active status. However, any request to consolidate the matter with a small claims matter which is not pending before this court must be pursued through proper channels, and not requested in opposition to a motion to set aside default.

The Court notes that the copy of the declaration efiled with the Court is not executed by plaintiff. Plaintiff is ordered to efile with the Court a properly executed and dated copy of the subject declaration, with a designation of the place of execution.

Motion is GRANTED pursuant to CCP section 473.5. The Court finds that the motion was timely filed, is in proper format, is accompanied by a proposed answer, and that service by publication did not result in actual notice to defendant in time to defend the action through no fault of defendant, who was not evading service. Default entered on January 22, 2024, and default judgment entered on February 15, 2024 are set aside.

Defendant is ordered to efile a separate signed copy of the proposed answer submitted with the motion as Exhibit 1 by close of business this date.

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